Criminal Law Chapter 13: Denials of an Offence

Denials of Offending

• The prosecution has the burden of proving all elements of the offence beyond a reasonable doubt, and the defendant's denials are about establishing doubt in any relevant form.
• Raising evidence of intoxication, automatism, or insanity can be useful where the defendant seeks to deny an offence.

Prior Fault and Denials of Offending

• Prior fault rules can find liability regardless of the defendant's denial, where the defendant's intoxication, automatism, or insanity resulted from their own prior fault (e.g., dangerous drug taking).
• Two points in time are distinguished:
  • T1: when the defendant performed the blameworthy act (e.g., voluntarily becoming intoxicated).
  • T2: when the defendant completed the actus reus of the offence, but lacked the necessary mens rea due to intoxication/automatism/insanity.

Intoxication

• Intoxication rules do not require the intoxication to be of a specific type or degree, as long as it is sufficient to establish a reasonable doubt as to whether the defendant had mens rea.
• D's intoxication only becomes relevant to liability if, as a result of the intoxication, an element of the offence is charged absent.

Prior Fault Intoxication as a Method of Inculpation

• Where the prosecution fail to establish that the defendant had mens rea at the time of the offence (T2) due to intoxication, the starting point is that no liability should be found.
• However, where the defendant has been responsible for bringing about that state of intoxication, there are strong policy reasons in favour of finding liability.

Elements of Prior Fault Intoxication

• Element 1: D must be voluntarily intoxicated.
• Element 2: D's offence must be one of basic intent.
• Element 3: D must have taken a dangerous drug.
• Element 4: D must have lacked mens rea because of intoxication.

Basic Intent Offences

• Examples: manslaughter, malicious wounding or causing GBH (s20), assault occasioning ABH (s47), assault and battery, rape, sexual assault, criminal damage (where only recklessness is alleged).
• D's prior fault in becoming voluntarily intoxicated at T1 may be sufficient to replace her lack of mens rea for these offences.

Specific Intent Offences

• Examples: murder, wounding or causing GBH with intent (s18), theft, robbery, section 9(1)(a) burglary, attempt to commit a specific intent offence, complicity.
• D's prior fault in becoming voluntarily intoxicated at T1 is not sufficient to replace her lack of mens rea for these offences.

Dutch Courage

• Where an intoxicated defendant lacks mens rea for a specific intent offence, this is usually the end of the matter: D's intoxication cannot replace her lack of mens rea, so there is no liability for that offence.
• However, there may be an exception where the defendant becomes intoxicated at T1 in order to commit the specific intent offence at T2 (dutch courage).

Automatism

• Automatism is a denial of offending, claiming that some external factor affected the defendant's body at T1 and caused them to lack voluntariness at T1.
• Three differences from intoxication rules:
  1. Automatism rules will not apply where the defendant's state of automatism is caused by a dangerous drug.
  2. Automatism will only apply where the defendant loses voluntary control of their conduct.
  3. The potential for the defendant to be held liable based on prior fault is considerably more limited.

Combining Intoxication, Automatism, and Insanity

• Identifying which set of rules to apply is crucial.

• If the defendant's lack of mens rea stems from an internal factor, only the insanity rules should apply.

• If the defendant's lack of mens rea stems from voluntary consumption of a dangerous drug, only the prior-fault intoxication rules should apply.

• If the defendant's conduct is involuntary as a result of an external factor other than a dangerous drug, only the automatism rules should apply.### Voluntariness Requirement

• A conscious link between D and the harmful or wrongful events attributed to her is essential for individual autonomy.

• Prior fault automatism is a method of inculpation where D's automatism at T2 arises from blameworthy conduct at T1.

Prior Fault Automatism

• Element 1: D must be in a state of automatism at T2 when completing the AR of the offence.
• Element 2: D must have acted with prior fault at T1, such as subjectively foreseeing the potential for involuntariness at T2.
• Element 3: D must be charged with a basic intent offence, where prior fault at T1 can replace or substitute for the missing elements of the offence at T2.

Automatism and Defences

• Where D successfully raises automatism in the absence of prior fault, she has not committed an offence, and there is no need to consider potential defences.
• Where D raises automatism in circumstances of prior fault, the prior fault automatism rules create liability, and defences must be considered.
• Defences can apply at T2 or T1, such as duress or threats.

Insanity

• Insanity arises where D claims not to have fulfilled all the elements of the offence due to some malfunctioning of her body (internal factor).
• Insanity as a defence arises where D has completed the AR and MR of an offence, and claims she was insane at the time, thereby avoiding liability.
• The presumption of sanity creates a legal burden, requiring D to prove (on the balance of probabilities) that she was insane at the time of the offence.

Special Verdict of Not Guilty by Reason of Insanity

• Where D satisfies the insanity rules, she will not receive an unqualified acquittal, but instead a special verdict of not guilty by reason of insanity.
• The court can impose a range of disposal orders, including hospital orders, supervision orders, or an absolute discharge.

Insanity as a Denial of Offending

• Element 1: D must have been suffering from a disease of the mind, which can be an internal bodily condition or psychological blow.
• Element 2: The disease of the mind must have caused a defect of reason, which led to D's involuntariness or lack of MR.
• Element 3: The defect of reason must have caused D to lack responsibility for the harms caused, either because she did not understand the nature or quality of what she was doing, or because she did not know it was wrong.

Lack of Responsibility

• D does not know the nature or quality of her act: This is a claim that D did not know what she was doing, and it is a reference to the physical nature of D's conduct.
• D does not know that her act is wrong: This limb of the insanity rules will usually arise where D has committed an offence (both AR and MR) and raises insanity as a defence.